| Matter of Robert C. |
| 2009 NY Slip Op 08222 [67 AD3d 790] |
| November 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Robert C., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Alan G. Krams and Janet L.Zaleon of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of disposition of the Family Court, Kings County (Freeman, J.), dated October 20,2008, which, upon a fact-finding order of the same court dated May 19, 2008, made after ahearing, finding that the appellant had committed acts which, if committed by an adult, wouldhave constituted the crimes of robbery in the first degree, robbery in the second degree (twocounts), felony assault in the second degree, assault in the second degree, menacing in thesecond degree, and criminal possession of a weapon in the fourth degree, adjudged him to be ajuvenile delinquent and placed him on probation for a period of 18 months. The appeal brings upfor review the fact-finding order dated May 19, 2008.
Ordered that the order of disposition is modified, on the law and the facts, (1) by deleting theprovisions thereof adjudicating the appellant a juvenile delinquent based upon the findings thathe committed acts which, if committed by an adult, would have constituted the crimes of robberyin the first degree, robbery in the second degree (two counts), and felony assault in the seconddegree and substituting therefor provisions dismissing the first, second, third, and fifth counts ofthe petition, and (2) by adding a provision thereto adjudicating the appellant a juveniledelinquent upon a finding that he committed an act which, if committed by an adult, would haveconstituted the crime of petit larceny; as so modified, the order of disposition is affirmed,without costs or disbursements, and the fact-finding order is modified accordingly.
The evidence adduced at the fact-finding hearing established that the appellant, Robert C.,and a group of more than one dozen young boys assaulted the complainant on August 9, 2007, inretaliation for a one-on-one fight between the appellant and the complainant that occurred earlierthat same day. During the altercation, the appellant allegedly kicked and stabbed the complainantwith a knife. Only after the altercation had ended, and everyone involved in it dispersed, did theappellant pick up and take possession of the complainant's cellular telephone, which had fallen tothe ground at the beginning of the attack. None of the complainant's assailants had demanded oreven mentioned the cell phone during or after the altercation.
Based upon the foregoing, the Family Court found that the appellant committed acts which,if committed by an adult, would have constituted the crimes of robbery in the first degree,robbery in the second degree (two counts), felony assault in the second degree, assault in thesecond degree, menacing in the fourth degree, and criminal possession of a weapon in the fourthdegree. After the appellant was adjudicated a juvenile delinquent based upon the aforementionedacts, he was placed on probation for a period of 18 months pursuant to an order of dispositiondated October 20, 2008. We modify the order of disposition.
Viewing the evidence in the light most favorable to the presentment agency (see Matter of Natayya P., 2 AD3d862 [2003]; cf. People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish that the appellant committed acts which, if committed by an adult,would have constituted the crimes of assault in the second degree based on the appellant's use ofthe knife (see Penal Law § 120.05 [2]), menacing in the second degree based onthe appellant's use of the knife (see Penal Law § 120.14 [1]), and criminalpossession of a weapon in the fourth degree (see Penal Law § 265.01 [2]; Matter of Kadeem W., 5 NY3d864 [2005]; Matter of Juan J., 81 NY2d 739 [1992]; Matter of Joseph J., 205AD2d 777 [1994]), as well as the lesser-included offense of petit larceny, which was alleged inthe petition (see Penal Law § 155.25; People v Jensen, 86 NY2d 248, 253[1995]; Matter of Tegure J., 51AD3d 1026 [2008]). Moreover, upon the exercise of our factual review power, we aresatisfied that the findings of fact as to these counts were not against the weight of the evidence(cf. CPL 470.15 [5]; see Peoplev Romero, 7 NY3d 633 [2006]; Matter of Omar B., 30 AD3d 411, 412 [2006]).
We find, however, that the evidence was not legally sufficient to establish any of the countsrelated to the crime of robbery, and that the findings of the Family Court to the contrary were,thus, also against the weight of the evidence (see Matter of Niazia F., 40 AD3d 292, 293 [2007]; Matter ofOmar B., 30 AD3d at 412-413; Matter of Bianca W., 267 AD2d 463 [1999];Matter of Peter J., 184 AD2d 511, 512 [1992]). "Rather, the evidence tends to show thatthe taking of the cell phone was an afterthought after the physical altercation had already ended,which would not constitute robbery" (Matter of Niazia F., 40 AD3d at 293; seePeople v Lopez, 58 AD2d 516 [1977]). Specifically, the presentment agency failed toestablish that the appellant assaulted or stabbed the complainant during the course of or in theimmediate flight from the robbery "for the purpose of compelling" the complainant to "deliverup property or to prevent or overcome resistance to the taking" of property (People vMiller, 87 NY2d 211, 214 [1995]; see Penal Law §§ 160.00, 160.10 [1],[2]; § 160.15 [3]). Accordingly, the findings relating to the counts alleging robbery in thefirst degree and robbery in the second degree must be vacated, and those counts of the petitionmust be dismissed. However, the evidence was sufficient to support the finding that the appellantcommitted an act [*2]which, if committed by an adult, wouldhere constitute the lesser included offense of petit larceny, based on his act of wrongfully takingthe cell phone (see Penal Law § 155.25).
In addition, the evidence was legally insufficient to establish felony assault in the seconddegree pursuant to Penal Law § 120.05 (6) (see Matter of Omar B., 30 AD3d at413). The presentment agency did not establish that the appellant, or another participant in theincident, caused serious physical injury to the complainant "[i]n the course of and in furtheranceof" a robbery, or in the "immediate flight therefrom" (Penal Law § 120.05 [6]; seePeople v Suggs, 296 AD2d 559 [2002]). Accordingly, the finding of felony assault in thesecond degree must be vacated and that count of the petition dismissed.
Although the fact-finding order and the order of disposition must be modified in accordancewith the foregoing, the matter need not be remitted to the Family Court for a new order ofdisposition, as there are sufficient grounds to find that the appellant committed the felony ofassault in the second degree, as defined in Penal Law§ 120.05 (2), and three separatemisdemeanors, for which the period of probation imposed is appropriate and commensurate withhis offenses (see Matter of Omar B., 30 AD3d at 412) Mastro, J.P., Balkin, Eng andLeventhal, JJ., concur.